Monday, May 23, 2011

Same-sex couples are no worse than heterosexual couples when it comes to raising children. This we know and insist upon regularly when challenged in court cases, in legislatures, or at the ballot box. Well occasionally a case comes along as a reminder that we are no better, either. So it is with In re M.C., decided earlier this month by the Second Appellate District of the California Court of Appeal (from the Los Angeles area).

M.C. came into state custody when her biological mother, Melissa, was arrested as an accessory to the attempted murder of Melissa's wife, Irene. Here is a summary of the details: Melissa and Irene got together in 2006, registered as domestic partners in February 2008, and separated in May 2008. Melissa began a relationship with a man, Jesus, became pregnant by him, and lived with him for the first few months of the pregnancy. In July, 2008, Melissa filed to dissolve the domestic partnership and also obtained a restraining order against Irene arising from over a year of incidents of physical violence. Melissa went back to Irene in September 2008 and the couple married in October, 2008, during that period when same-sex marriages were legal in California. Melissa did not tell Jesus where she was living, and he did not try to contact her.

MC was born in March 2009 and given the surname that Melissa and Irene shared, although Melissa was the only parent listed on the birth certificate. Melissa moved out with M.C. a few weeks later, and Irene filed for joint custody in June. In that same action, Melissa obtained a restraining order against Irene. Melissa resumed contact with Jesus, who had moved to Oklahoma. Jesus sent her a little money, and she regularly took MC to visit Jesus's family. At Melissa's request, Jesus also submitted a declaration of paternity in the divorce proceeding in an effort to defeat Irene's custody request.

In September 2009, Melissa's new boyfriend stabbed Irene in the neck and back, causing severe injuries. Irene saw the assailant run from the scene and get into Melissa's car. This is what resulted in Melissa's arrest and incarceration. The dependency petition for M.C. said that the juvenile court had jurisdiction over the child because of Melissa's incarceration and history of drug abuse and Irene and Melissa's history of domestic violence.

The opinion goes through the history of violence, drug use, lack of suitable living situation, etc with respect to both Irene and Melissa. The Department of Child and Family Services (DCFS) contacted Jesus in Oklahoma and interviewed him by phone. He asked to have the child placed with him, and he returned to California to visit M.C. and attend meetings and court hearings. At some point there was agreement that M.C. should live with Melissa's grandparents, although at the last minute DCFS recommended that Jesus receive sole physical custody, Jesus and Melissa receive joint legal custody, and Melissa and Irene receive supervised visitation.

The trial judge found that Melissa was M.C.'s biological mother and that both Jesus and Irene were presumed parents, Jesus because of his biological status and relationship with the child, and Irene because she was married to Melissa when the child was born. The court placed M.C. with the Melissa's grandparents, subject to unsupervised visitation by Jesus and his mother and supervised visitation with both Irene and Melissa (Melissa's, of course, would have to take place where she was incarcerated....). All three parents appealed. Interestingly, Melissa and Irene both challenged the court's ruling that Jesus was a presumed father. Jesus challenged only the court's refusal to place M.C. with him.

The issue on appeal was the propriety of the trial court's finding (which the appeals court calls "novel") that M.C. has three presumed parents. Presumed parents have a right to participate in dependency proceedings, have appointed counsel, and receive reunification services. And here is where the Court of Appeal delivers the disturbing legal conclusion that a child cannot have two mothers or fathers if such recognition would result in the child having three parents. The California cases cited by the court for that proposition, however, do not need to be read that way. The appeals court remands the case to the trial court to determine which presumption to honor, using the statutory standard that when there are conflicting presumptions "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."

One judge (of the three hearing the appeal) went further and concluded that the presumptions should have been resolved in favor of Jesus and custody placed with him immediately.

Here are the troubling aspects of the court's ruling. (As opposed to the troubling aspects of M.C.'s life, which are, of course, numerous). I'm chronicling these because the reasoning of this case may hold sway when there is a known biological father in what are the more common circumstances of a same-sex couple who are both fit parents.

The law must be able to recognize that a child can have three parents. The categorical statement in this opinion to the contrary is wrong on California law and as a matter of policy. California trial courts are already allowing a bio mom's partner to adopt a child without terminating the rights of a semen donor who is functioning as a father. A nonbio mom in California becomes a legal parent through holding the child out as her own or through being married to or in a domestic partnership with the bio mom. That should not be jeopardized by the existence of an identifiable genetic father. The Children's Advocacy Institute at the University of San Diego School of Law filed a friend of the court brief advocating that M.C. had three parents.

Jesus may be the best candidate of these three people to raise M.C., but he should not have qualified as a presumed father under California law (for reasons that involve more analysis of appellate opinions than I can discuss here and that should make for a terrific law review note for some current law student). Melissa wasn't in hiding after she left him, and Jesus could and should have shown some interest in raising M.C. from the beginning if he wanted to claim parental rights. This case makes it too easy for a bio mom to enlist a bio dad in doing away with a nonbio mom's rights.

The appeals court says Irene "likely" had a superficial attachment to M.C. because the couple and child lived together for only three weeks. Well, a couple of years ago a different California appeals court rejected the argument that a period of time was necessary before a nonbio mom could be considered a parent. (See my post about Charisma R. v. Kristina S.here.) This court reveals its hostility to nonbio moms in another place -- a completely unnecessary footnote in which it suggests that the purpose of "paternity" determinations is providing genetic history for a child and that those provisions should not be interpreted to facilitate "parentage" determinations for nonbiological parents. Fortunately, the California Supreme Court has ruled otherwise, going back to 2005.

I've written elsewhere that we are likely to see increasing instances of a child conceived through sexual intercourse born to a woman who has a same-sex partner or spouse. I am deeply troubled by the idea that method of conception determines legal parental status, although I begrudgingly admit that seems to be the current state of the law.

Taking the facts in this opinion as true, I would also conclude that M.C. belongs with Jesus. It is possible to reach that conclusion without unnecessary pronouncements limiting the number of parents a child may have to two or privileging biological connections. My lawyer friends in California tell me this opinion might be ripe for depublication, which would limit its impact. I'm banking on that.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.